STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ANNETTE L MENDOLLA, Employee

DENTAL HEALTH ASSOCIATES
OF MADISON LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11404603AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee initiated a claim for unemployment benefits in week 15 of 2010. The employee exhausted her eligibility for regular unemployment benefits, emergency compensation, and extended benefits in week 48 of 2011. As of week 49 of 2011, the only unemployment benefits for which the employee was potentially eligible were extended training benefits.

The extended training benefits program provides up to 26 weeks of unemployment benefits to claimants who are enrolled in training for entry into a high demand occupation if a number of conditions, as set forth in Wis. Stat. § 108.06(7), are met. Namely, a claimant must have exhausted all rights to state and federal unemployment benefits; must be otherwise eligible for benefits; if not in a current benefit year, must have a benefit year that ended no earlier than 52 weeks prior to the week for which the claimant first claimed extended training benefits; must not be receiving stipends or other training allowances; and must be currently enrolled in approved training, as defined in Wis. Stat. § 108.04(16).

It is undisputed that, as of week 49 of 2011, the employee had exhausted all her rights to state and federal unemployment benefits, was otherwise eligible for benefits, and had a benefit year that ended within the previous 52 weeks. There was no evidence that the employee was receiving stipends or other training allowances. Therefore, the employee's eligibility for extended training benefits is dependent upon a determination as to whether she was enrolled in approved training.

Wisconsin Stat. § 108.04(16) provides in pertinent part:

(16) APPROVED TRAINING. (a) In this subsection, "approved training" means:

1. A course of vocational training or basic education which is a prerequisite to such training in which an individual is enrolled if:

a. The course is expected to increase the individual's opportunities to obtain employment;

b. The course is given by a school established under s. 38.02 or another training institution approved by the department;

c. The individual is enrolled full time as determined by the training institution;

d. The course does not grant substantial credit leading to a bachelor's or higher degree; and

e. The individual is attending regularly and making satisfactory progress in the course.

The employee began pursuing an associate's degree in nursing at Northeast Wisconsin Technical College (NWTC) as a full-time student in August 2011. She carried a course load of 12 credits in the fall 2011 semester. Her classes included Nursing Fundamentals, Nursing Skills, Nursing Pharmacology, Nursing: Introduction to Clinical Practice, and Developmental Psychology. The employee earned two As, two Bs, and one C as grades for the semester. She anticipates completing her associate's degree in 2013.

The department sent the employee a school attendance questionnaire on October 1, 2011. When completing the form, the employee indicated that she was seeking a bachelor's degree. In response to follow-up questions asked of her by a department adjudicator, the employee, on October 3, explained that she was currently in an associate's degree nursing program and that she planned "to work in the field" after getting her associate's degree and to "take online courses for (her) bachelor's degree."

On December 16, 2011, the department issued a determination finding that the employee was not eligible for extended training benefits as of week 49 of 2011 because she plans to pursue a bachelor's degree. The employee timely requested a hearing on the merits.

After hearing, the ALJ issued an appeal tribunal decision affirming the department's determination. The ALJ did not find credible the employee's testimony that she did not intend to pursue a four-year college degree in nursing once she had completed her associate's degree because her testimony contradicted her prior statements to the department. The ALJ found that the employee planned to continue her education by transferring her credits from NWTC to a four-year bachelor's program offered by the University of Wisconsin - Green Bay (UWGB). The ALJ included a link to UWGB's online "RN to BSN" completion program to support his finding.(1)

The employee argues in her petition for commission review that her current course of study should be considered approved training despite any goal she may have to obtain her bachelor's degree at some indeterminate point in the future. The commission agrees.

Wisconsin Stat. § 108.04(16)(a)1 requires that, to be approved training, a course of study must be vocational or must be a prerequisite to vocational training. The department defines vocational training as non-academic, skill-oriented training that provides a student with job tools and skills that can be used in the workplace. It includes technical, skill-based, or job readiness training intended to pursue a career. Disputed Claims Manual, Approved Training, Part II, Section G: Regular Vocational Training. The course of study must be expected to increase the student's opportunities to obtain employment, must be given by a school established within the state Vocational Technical and Adult Education (VTAE) system or by another institution approved by the department, and must not grant substantial credit toward a bachelor's or higher degree. Finally, the student must be enrolled in the vocational training full-time and must attend regularly and make satisfactory progress.

In this case, the employee was pursuing on a full-time basis an associate's degree in nursing at a school established within the state technical college system. Nursing is considered a high demand occupation, so it is reasonable to infer that training as a nurse will increase the employee's opportunities to obtain employment. Upon completion of her associate's degree, the employee will have gained technical, skill-based job tools that she can immediately use in the workplace. In the fall of 2011, the employee presumably attended school regularly because she passed all of her classes.

The ultimate question is whether the employee's course of study grants substantial credit leading to a bachelor's or higher degree. The department's policy on this issue, as expressed in its Disputed Claims Manual, provides that:

A course is considered not to grant substantial credit if the individual's intent is not to pursue a higher degree. However, a claimant who in fact does intend to transfer to a higher degree would do so only if a substantial amount of credits would transfer.

While it may be the department's policy to consider a claimant's intent when determining whether a course of study grants substantial credit toward a bachelor's or higher degree, the commission is not bound by such a policy. An internal policy of the department is not a rule. The commission is not obligated to consider department policies which, although clearly designed to implement and interpret specific statutes and to be of general application, have not been duly adopted as administrative rules. Lema v. Harley Davidson Motor Company, UI Dec. Hearing No. 07002817BD (LIRC Oct. 26, 2007); McClelland v. Harley Davidson Motor Company, UI Dec. Hearing No. 07001664MD (LIRC Oct. 26, 2007); Kerry Stamm, UI Dec. Hearing No. 04000402JV (LIRC Jan. 12, 2005); Jones v. Seek, UI Dec. Hearing No. 99601034MW (LIRC July 6, 1999).

The commission declines to apply the department's policy determining whether a course of study grants substantial credit toward a bachelor's or higher degree for several reasons. First, Wis. Stat. § 108.04(16)(a) does not include the element of intent. Second, although an employee is presumed eligible for unemployment benefits, the department has placed the burden on a claimant in vocational training to establish that a substantial amount of the claimant's credits would not transfer to a four-year degree. Finally, the department's policy does not indicate what would be considered a "substantial amount of credits."

The effect of applying the department's policy in this case would be to deny benefits to the employee, who hopes someday to obtain a bachelor's degree, while granting benefits to another claimant, who is pursuing the same course of study but who does not aspire to obtain a higher degree or who does not disclose his or her educational goals to the department. Such a result seems illogical and a misinterpretation of the approved training statute.

The legislature encourages education and retraining of workers during their unemployment. Wis. Stat. § 108.01(2). The approved training statute allows the payment of unemployment benefits to individuals who are participating in non-academic, vocational training, if that training provides the individual with technical, skill-based job tools that can readily be used in the workplace upon completion, if the individual is participating in the training on a full-time basis, and if the individual is making satisfactory progress.

Here, the employee is receiving practical training at a local technical college that will increase her opportunities to obtain employment. She does not need a bachelor's or higher degree to secure work in her field. The employee plans to work as a nurse upon completion of her associate's degree. The legislative objective of returning an unemployed worker to gainful employment will have been achieved. The employee's goal of someday obtaining her bachelor's degree via an online program while working does not make her ineligible for extended training benefits.

The commission therefore finds that, in week 49 of 2011, the employee was enrolled in approved training, as defined in Wis. Stat. § 108.04(16)(a), and met all of the other eligibility requirements for extended training benefits as set forth in Wis. Stat. § 108.06(7).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for extended training benefits as of week 49 of 2011, if otherwise qualified.

Dated and mailed March 23, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the administrative law judge before reversing his decision. The commission's reversal is not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law. The ALJ's finding that the employee's testimony at hearing was inconsistent with her prior statements to the department was incorrect. During the department's fact-finding investigation, the employee informed the adjudicator that, after she obtained her associate's degree, she was going to work in the field and take additional classes online.

mendoan . urr : 152 : 1

 

 


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Footnotes:

(1)( Back ) The existence of the website and the information contained thereon is outside the record and will not be considered. See, Johnston v. Villa Pines Living Center, UI Dec. Hearing No. 07002780MD (LIRC Nov. 2, 2007).